Gunzburg v. Quality Bldg. Servs. Corp.

• Decision Date: 01 March 2016
• Citation: 26 N.Y.S.3d 274,137 A.D.3d 424
• Parties: Arleen GUNZBURG, Plaintiff–Appellant–Respondent, v. QUALITY BUILDING SERVICES CORP., Defendant–Respondent, A/R Retail LLC, et al., Defendants–Respondents–Appellants, Quality Protection Services, Inc., Defendant.
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 424

26 N.Y.S.3d 274

Arleen GUNZBURG, Plaintiff–Appellant–Respondent,

v.QUALITY BUILDING SERVICES CORP., Defendant–Respondent,A/R Retail LLC, et al., Defendants–Respondents–Appellants,Quality Protection Services, Inc., Defendant.

Supreme Court, Appellate Division, First Department, New York.

March 1, 2016.

Michael Gunzburg, P.C., New York (Michael Gunzburg of counsel), for appellant-respondent.

McGaw, Alventosa & Zajaz, Jericho (Joseph Horowitz of counsel), for respondents-appellants.

Law Office of James J. Toomey, New York (Eric P. Tosca of counsel), for respondent.

ACOSTA, J.P., RENWICK, ANDRIAS, MOSKOWITZ, JJ.

Order, Supreme Court, New York County (Louis B. York, J.), entered June 27, 2014, which granted defendants Quality Building Services Corp.'s (QBS) and A/R Retail LLC, Related Urban Development LP and Related Urban Management Company's (the Related defendants) motions for summary judgment dismissing the complaint as against them, denied plaintiff's cross motion for partial summary judgment, and denied the Related defendants' cross motion for summary judgment on their cross claim against defendant QBS for contractual indemnification, unanimously modified, on the law, to grant the Related defendants' motion as to contractual indemnification, and otherwise affirmed, without costs.

QBS and the Related defendants established prima facie that they did not have constructive notice of the alleged dangerous condition on which plaintiff slipped and fell. "The fact that it was raining and water was being tracked in does not constitute notice of a dangerous situation"; QBS and the Related defendants "were under no obligation ... to continuously mop up all tracked-in water" (see Garcia v. Delgado Travel Agency, 4 A.D.3d 204, 204, 771 N.Y.S.2d 646 [1st Dept.2004] ; see also Thomas v. Boston Props., 76 A.D.3d 460, 461, 906 N.Y.S.2d 265 [1st Dept.2010] ). Moreover, plaintiff's own testimony established that the water on which she slipped was not visible and apparent and therefore could not provide constructive notice (see Gomez v. J.C. Penny Corp., Inc., 113 A.D.3d 571, 572, 979 N.Y.S.2d 323 [1st Dept.2014] ). Plaintiff testified that, despite looking at the floor where she was walking, it was not until after she fell that she was able to discern the wet spots on the floor, which she described as clear droplets in a small area less than two feet in diameter that were "hard to have seen ... when I was standing up." Plaintiff failed to raise a triable issue of fact whether the accumulating rain water was...